COCODE

18-1.3-1004. Indeterminate sentence.

Statute text

(1) (a) Except as otherwise provided in this subsection (1) and in subsection (2) of this section, the district court having jurisdiction shall sentence a sex offender to the custody of the department for an indeterminate term of at least the minimum of the presumptive range specified in section 18-1.3-401 for the level of offense committed and a maximum of the sex offender's natural life.

(b) If the sex offender committed a sex offense that constitutes a crime of violence, as defined in section 18-1.3-406, the district court shall sentence the sex offender to the custody of the department for an indeterminate term of at least the midpoint in the presumptive range for the level of offense committed and a maximum of the sex offender's natural life.

(c) If the sex offender committed a sex offense that makes him or her eligible for sentencing as an habitual sex offender against children pursuant to section 18-3-412, the district court shall sentence the sex offender to the custody of the department for an indeterminate term of at least three times the upper limit of the presumptive range for the level of offense committed and a maximum of the sex offender's natural life.

(d) If the sex offender committed a sex offense that constitutes a sexual offense, as defined in section 18-3-415.5, and the sex offender, prior to committing the offense, had notice that he or she had tested positive for the human immunodeficiency virus (HIV) and HIV infection, and the infectious agent of the HIV infection was in fact transmitted, the district court shall sentence the sex offender to the custody of the department for an indeterminate term of at least the upper limit of the presumptive range for the level of offense committed and a maximum of the sex offender's natural life.

(e) (I) Notwithstanding any other provision of law, the district court shall sentence a sex offender to the custody of the department for an indeterminate term as specified in subparagraph (II) of this paragraph (e) if the sex offender:

(A) Committed a class 2, class 3, or class 4 sex offense in violation of section 18-3-402, 18-3-405, or 18-3-405.3 when the act includes sexual intrusion as defined in section 18-3-401 (5) or sexual penetration as defined in section 18-3-401 (6);

(B) Committed the act against a child who was under twelve years of age at the time of the offense; and

(II) The district court shall sentence a sex offender to the department of corrections for an indeterminate term of incarceration of:

(A) At least ten to sixteen years for a class 4 felony to a maximum of the person's natural life, as provided in this subsection (1), if he or she committed a crime as described in subparagraph (I) of this paragraph (e);

(B) At least eighteen to thirty-two years for a class 3 felony to a maximum of the person's natural life, as provided in this subsection (1), if he or she committed a crime as described in subparagraph (I) of this paragraph (e); and

(C) At least twenty-four to forty-eight years for a class 2 felony, to a maximum of the person's natural life, as provided in this subsection (1), if he or she committed a crime as described in subparagraph (I) of this paragraph (e).

(III) If the defendant is placed on parole, the parole board shall order the defendant to wear electronic monitoring for the duration of his or her period of parole.

(2) (a) The district court having jurisdiction, based on consideration of the evaluation conducted pursuant to section 16-11.7-104, C.R.S., and the factors specified in section 18-1.3-203, may sentence a sex offender to probation for an indeterminate period of at least ten years for a class 4 felony or twenty years for a class 2 or 3 felony and a maximum of the sex offender's natural life; except that, if the sex offender committed a sex offense that constitutes a crime of violence, as defined in section 18-1.3-406, or committed a sex offense that makes him or her eligible for sentencing as a habitual sex offender against children pursuant to section 18-3-412, or a sex offense requiring sentencing pursuant to paragraph (e) of subsection (1) of this section, the court shall sentence the sex offender to the department of corrections as provided in subsection (1) of this section. For any sex offender sentenced to probation pursuant to this subsection (2), the court shall order that the sex offender, as a condition of probation, participate in an intensive supervision probation program established pursuant to section 18-1.3-1007, until further order of the court.

(b) The court, as a condition of probation, may sentence a sex offender to a residential community corrections program pursuant to section 18-1.3-301 for a minimum period specified by the court. Following completion of the minimum period, the sex offender may be released to intensive supervision probation as provided in section 18-1.3-1008 (1.5).

(3) Each sex offender sentenced pursuant to this section shall be required as a part of the sentence to undergo treatment to the extent appropriate pursuant to section 16-11.7-105, C.R.S.

(4) Repealed.

(5) (a) Any sex offender sentenced pursuant to subsection (1) of this section and convicted of one or more additional crimes arising out of the same incident as the sex offense shall be sentenced for the sex offense and such other crimes so that the sentences are served consecutively rather than concurrently.

(b) (I) Except as otherwise provided in subparagraph (II) of this paragraph (b), if a sex offender sentenced pursuant to this part 10 is convicted of a subsequent crime prior to being discharged from parole pursuant to section 18-1.3-1006 or discharged from probation pursuant to section 18-1.3-1008, any sentence imposed for the second crime shall not supersede the sex offender's sentence pursuant to the provisions of this part 10. If the sex offender commits the subsequent crime while he or she is on parole or probation and the sex offender receives a sentence to the department of corrections for the subsequent crime, the sex offender's parole or probation shall be deemed revoked pursuant to section 18-1.3-1010, and the sex offender shall continue to be subject to the provisions of this part 10.

(II) The provisions of subparagraph (I) of this paragraph (b) shall not apply if the sex offender commits a subsequent crime that is a class 1 felony.

History

Source: L. 2002: Entire article added with relocations, p. 1435, 2, effective October 1. L. 2006: (4)(b)(II) amended, p. 2044, 3, effective July 1. L. 2010: (4)(b)(I) amended, (SB 10-140), ch. 156, p. 538, 8, effective April 21. L. 2012: (4) repealed and (5)(a) amended, (HB 12-1310), ch. 268, pp. 1397, 1402, 14, 24, effective June 7. L. 2014: (1)(e) added and (2)(a) amended, (HB 14-1260), ch. 345, p. 1538, 2, effective July 1. L. 2016: (1)(d) amended, (SB 16-146), ch. 230, p. 915, 8, effective July 1.

Annotations

Editor's note: This section is similar to former 16-13-804 as it existed prior to 2002.

Annotations

Cross references: For the legislative declaration in HB 14-1260, see section 1 of chapter 345, Session Laws of Colorado 2014.

Annotations

ANNOTATION

Annotations

Annotator's note. Since 18-1.3-1004 is similar to 16-13-804 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing those provisions have been included in the annotations to this section.

Indeterminate sentencing portion of the lifetime supervision of sex offenders act is constitutional. Indeterminate sentencing does not violate procedural due process. A defendant is given an opportunity to be heard at sentencing, and, since the statute does not require any further findings by a court to impose indeterminate sentencing, the defendant is not entitled to any further opportunity to be heard. People v. Oglethorpe, 87 P.3d 129 (Colo. App. 2003); People v. Lehmkuhl, 117 P.3d 98 (Colo. App. 2004).

Indeterminate sentencing for sex offenders does not violate procedural due process. The opportunities in 18-1.3-1006 (1) satisfy continuing due process requirements by providing an adequate continuing opportunity to be heard on the issue of release after a sentence has been imposed. People v. Oglethorpe, 87 P.3d 129 (Colo. App. 2003); People v. Dash, 104 P.3d 286 (Colo. App. 2004); People v. Lehmkuhl, 117 P.3d 98 (Colo. App. 2004).

Substantive due process is not infringed by indeterminate sentencing. Indeterminate sentencing does implicate a fundamental right; therefore, it is subject to the rational basis test. The sentencing scheme is rationally related to the government's legitimate interest in shielding the public from untreated sex offenders and rehabilitating and treating those offenders. People v. Oglethorpe, 87 P.3d 129 (Colo. App. 2003); People v. Dash, 104 P.3d 286 (Colo. App. 2004); People v. Lehmkuhl, 117 P.3d 98 (Colo. App. 2004).

Indeterminate sentencing does not violate equal protection. The threshold question in any equal protection challenge is whether the person allegedly subject to the disparate treatment is in fact similarly situated. In this case, the defendant is similarly situated with other offenders convicted of the same or similar crimes and subject to the same law, so there is no disparate treatment. People v. Oglethorpe, 87 P.3d 129 (Colo. App. 2003); People v. Dash, 104 P.3d 286 (Colo. App. 2004); People v. Lehmkuhl, 117 P.3d 98 (Colo. App. 2004).

Indeterminate sentencing does not violate separation of powers. In this sentencing scheme, each branch carries out a different function, the legislative branch determined the particular punishment, the judicial branch imposed the particular sentence, and the executive branch carried out the sentence. Vesting the parole board with the decision to grant parole or release does not violate separation of powers. People v. Oglethorpe, 87 P.3d 129 (Colo. App. 2003); People v. Dash, 104 P.3d 286 (Colo. App. 2004); People v. Lehmkuhl, 117 P.3d 98 (Colo. App. 2004).

Trial court properly reviewed constitutionality of this section under the rational basis test. An adult offender has no fundamental liberty interest in freedom from incarceration. Because no fundamental right is implicated, the section is evaluated under the rational basis test. People v. Strean, 74 P.3d 387 (Colo. App. 2002); People v. Dash, 104 P.3d 286 (Colo. App. 2004).

This section bears a reasonable relationship to the legitimate state interests of safety, flexibility in rehabilitation and treatment, and minimizing unacceptably high costs of lifetime incarceration. People v. Strean, 74 P.3d 387 (Colo. App. 2002); People v. Dash, 104 P.3d 286 (Colo. App. 2004).

Indeterminate sentencing for sex offenders does not constitute cruel and unusual punishment. Sex offenses are considered particularly heinous crimes. People v. Dash, 104 P.3d 286 (Colo. App. 2004).

Prisoner has a liberty interest in participation in a statutorily mandated sex offender treatment program. Beebe v. Heil, 333 F. Supp. 2d 1011 (D. Colo. 2004).

In evaluating prisoner's substantive due process claim, the court must consider whether prison officials were deliberately indifferent to a liberty interest and deprived prisoner of that interest in such a way that the behavior of the governmental officers was so egregious, so outrageous that it may fairly be said to shock the contemporary conscience. The deliberate indifference standard is sensibly employed when actual deliberation is practical. Beebe v. Heil, 333 F. Supp. 2d 1011 (D. Colo. 2004).

Due process must be provided to a convicted sex offender before he can be excluded from such a program. Beebe v. Heil, 333 F. Supp. 2d 1011 (D. Colo. 2004).

The court must consider first, whether prisoner's exclusion from the treatment program itself constitutes an atypical and significant hardship and, second, whether the failure of the prison officials to provide prisoner with due process before terminating him from sex offender treatment constitutes an atypical and significant hardship. To evaluate whether a prisoner's freedom has been restrained in a manner that imposes atypical and significant hardship, the court must carefully examine the conditions of the prisoner's confinement, including the duration and degree of prisoner's restrictions as compared with other inmates. Beebe v. Heil, 333 F. Supp. 2d 1011 (D. Colo. 2004).

The enhanced sentencing requirements of subsection (1)(b) apply to both defined and per se crimes of violence. Chavez v. People, 2015 CO 62, 359 P.3d 1040.

A defendant who is subject to 18-1.3-406 (1)(b) because he or she committed a crime of violence and a sex offense under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), is not eligible to have his or her sentence of an indeterminate term of incarceration modified to probation under 18-1.3-406 (1)(a). People v. Al-Turki, 2017 COA 39, 454 P.3d 261, aff'd by an equally divided court, 2019 CO 77, 449 P.3d 373.

Subsection (5)(a) of this section does not create an exception to the general rule found in 18-1-408 (3) that a court must impose concurrent sentences for counts based on identical evidence. People v. Torrez, 2013 COA 37M, 316 P.3d 25.

This part 10 grants the court discretion to impose an indeterminate sentence with a minimum term that exceeds the maximum of the presumptive range set forth in 18-1.3-401. This part 10 creates specific sentencing provisions for a specific type of felony, whereas the general sentencing provisions in 18-1.3-401 create presumptive ranges that apply to general classes of felonies. These sentencing provisions, therefore, supplant the presumptive ranges in 18-1.3-401. People v. Larson, 97 P.3d 246 (Colo. App. 2004).

If a convicted sex offender is subject to both subsection (1)(a) and the provisions of the habitual criminal statute, both statutes must be reconciled. In such case, the trial court must impose a prison sentence for an indeterminate term of at least three times the upper limit of the presumptive range for the level of offense committed and a maximum of the sex offender's natural life. People v. Apodaca, 58 P.3d 1126 (Colo. App. 2002).

This section requires the court to give the offender an indeterminate sentence. The phrase "at least" in paragraph (a) of subsection (1) by its plain meaning provides the court with the options to impose either the minimum of the presumptive range or an increased minimum sentence as the minimum period of the indeterminate sentence. People v. Smith, 29 P.3d 347 (Colo. App. 2001); People v. Becker, 55 P.3d 246 (Colo. App. 2002).

Indeterminate sentencing is mandatory for the types of inchoate or completed offenses enumerated in 18-1.3-1003 (5). People v. Harrison, 165 P.3d 859 (Colo. App. 2007).

When a defendant is convicted of a sex offense that is also a crime of violence, the defendant must be sentenced to an indeterminate sentence of incarceration with a minimum term in the enhanced sentencing range set forth in subsection (1)(b). Chavez v. People, 2015 CO 62, 359 P.3d 1040.

Discretionary indeterminate sentencing permits the court to sentence an offender to indeterminate term only if: (1) He or she is convicted of an economic sex crime and (2) an assessment of that offender determines that he or she is likely to commit a sexually violent predator (SVP) offense against a stranger or a groomed victim. People v. Walker, 321 P.3d 528 (Colo. App. 2011), aff'd on other grounds, 2014 CO 6, 318 P.3d 479, cert. denied, 574 U.S. 847, 135 S. Ct. 112, 190 L. Ed. 2d 88 (2014).

A mental health sex offender specific evaluation satisfies the assessment prong. The assessment was sufficient to determine defendant was likely to commit an SVP offense in the future against a groomed victim. The assessment's use of the term "significant risk to commit" was the same as "likely to commit". People v. Walker, 321 P.3d 528 (Colo. App. 2011), aff'd on other grounds, 2014 CO 6, 318 P.3d 479, cert. denied, 574 U.S. 847, 135 S. Ct. 112, 190 L. Ed. 2d 88 (2014).

Indeterminate sentencing is discretionary and appropriate but only under certain circumstances, including the need for an SVP assessment, for the offenses specified in subsection (4). People v. Harrison, 165 P.3d 859 (Colo. App. 2007).

This section gives notice of the possible sentencing range and allows the court to exercise its discretion in considering rehabilitative potential. People v. Smith, 29 P.3d 347 (Colo. App. 2001).

To calculate the maximum permissible minimum end of the indeterminate sentence for a defendant sentenced as a habitual sex offender against children, a trial court must triple the maximum of the presumptive range for the offense and then may double the resulting figure if the court finds aggravating circumstances under 18-3-401 (6). Isom v. People, 2017 CO 110, 407 P.3d 559.

A defendant sentenced pursuant to 18-3-412 (2) and subsection (1)(c) of this section must be sentenced to an indeterminate prison sentence with a lower term of three times the maximum of the presumptive range, unless the court finds extraordinary aggravating circumstances under 18-1.3-401, then the lower term can be up to six times the maximum of the presumptive range. People v. Isom, 2015 COA 89, 410 P.3d 561, aff'd, 2017 CO 110, 407 P.3d 559.

Phrase "at least" in 16-13-804 (1) does not require the court to set the minimum length of the indeterminate sentence at the midpoint of the presumptive range. The court may impose a minimum length to the indeterminate sentence that is greater than the midpoint of the presumptive range. People v. Becker, 55 P.3d 246 (Colo. App. 2002).

When the court sentenced the defendant to consecutive sentences after finding that the two counts arose out of the same incident, the sentencing did not violate Apprendi principles. In this case, the court's fact finding did not increase the defendant's sentence beyond the maximum allowed by statute. People v. Lehmkuhl, 117 P.3d 98 (Colo. App. 2004).

Sections 16-11-309 (1)(c) and 18-1-105 (9)(e.5) conflict irreconcilably with 16-13-804 (1)(b). The phrase "up to the defendant's natural life" in 16-11-309 (1)(c) and 18-1-105 (9)(e.5) conflicts with the phrase "a maximum of the sex offender's natural life" in 16-13-804 (1)(b). Statutory construction calls for 16-13-804 (1)(b) to prevail, requiring the court to set the maximum length of the indeterminate sentence at the defendant's natural life. People v. Becker, 55 P.3d 246 (Colo. App. 2002).

The court has discretion to designate a minimum term that is greater than the maximum presumptive penalty. To conclude otherwise would be to read a provision into the act that does not exist. People v. Larson, 97 P.3d 246 (Colo. App. 2004).

SOLSA requires an indeterminate sentence for the class 2, 3, and 4 felony sex offenses to which it applies, consisting of an upper term of the sex offender's natural life and a lower term of a definite number of years, not less than the minimum nor more than twice the maximum of the presumptive range authorized for the class of felony of which the defendant stands convicted. Vensor v. People, 151 P.3d 1274 (Colo. 2007).

Although SOLSA expressly forbids a sentence with a lower term that is less than the minimum of the presumptive range, it does not preclude the lower term of the defendant's indeterminate sentence from exceeding the presumptive range as the result of extraordinary aggravating circumstances. Subject to the express prohibition of subsection (1)(a) against a sentencing below the presumptive range, the lower term of a sex offender's indeterminate sentence must be fixed according to the provisions of the determinate sentencing scheme of 18-1.3-401. Vensor v. People, 151 P.3d 1274 (Colo. 2007).

This section applies to first degree sexual assault on an at-risk adult. People v. Klausner, 74 P.3d 421 (Colo. App. 2003).

This section applies to an attempt to commit a sex offense if the attempt constitutes a class 2, 3, or 4 felony. People v. King, 151 P.3d 594 (Colo. App. 2006).

Before a defendant convicted of soliciting for child prostitution can be sentenced to an indeterminate sentence, an assessment must be made that it is likely that the defendant will commit an enumerated SVP crime under certain specific circumstances. People v. Jacobs, 91 P.3d 438 (Colo. App. 2003).

When the sentence imposed by the court is supported by the record there is no abuse of discretion. People v. Oglethorpe, 87 P.3d 129 (Colo. App. 2003).

Where defendant was sentenced under subsection (1)(a) of this section and not 18-1.3-401 (7), the court was not required to make specific findings to identify extraordinary circumstances and reasons for varying from the presumptive sentencing range. People v. Vensor, 116 P.3d 1240 (Colo. App. 2005), rev'd on other grounds, 151 P.3d 1274 (Colo. 2007).

Court not required to impose consecutive sentences pursuant to subsection (5)(a). The two crimes did not arise out of the same incident because the communication between undercover officer posing as mother and defendant took place over a period of 10 days. People v. Douglas, 2012 COA 57, 296 P.3d 234.

Collateral attack on district court's jurisdiction to order a deferred judgment and sentence barred under statute of limitations set forth in 16-5-402. The statutory language expressly limits the court's jurisdiction only in those cases where it actually enters a sentence, and a deferred judgment is technically not a sentence but rather a continuance with probation-like supervision conditions. People v. Loveall, 231 P.3d 408 (Colo. 2010).

The period of supervision that a sex offender spends under an unsuccessful deferred judgment does not count toward the offender's probation sentence. People v. Anderson, 2015 COA 12, 348 P.3d 491.

Persons sentenced under SOLSA are not held to the same standard set forth by the supreme court in Allman v. People, 2019 CO 78, 451 P.3d 826, that a court may not sentence a defendant to both prison and probation in a multicount case. Here, because the sentencing of defendant was based on SOLSA, it was proper to sentence defendant to prison with consecutive probation. People v. Ehlebracht, 2020 COA 132, 480 P.3d 727.

Although the general sentencing statutes reflect the legislature's disapproval of consecutive prison-probation sentences, SOLSA reflects the legislature's approval of such sentencing in cases including a sentence for a non-sex offense and a sentence for a sex offense. Therefore, the Allman sentencing prohibition for consecutive prison-probation sentences does not apply in cases where a defendant receives a prison sentence for a non-sex offense and a consecutive probation sentence for sex offender intensive supervision probation. People v. Manaois, 2021 CO 49, 488 P.3d 1099.

The Allman sentencing prohibitions do not apply when sentencing a defendant in a multi-count case that involves a non-sex offense and a sex-related offense (as opposed to a sex offense, as was the case in People v. Manaois annotated above). So long as the probation portion of the prison-probation sentence in the scenario falls within the confines of SOLSA, Allman's sentencing restriction is inapplicable. People v. Keen, 2021 CO 50, 488 P.3d 1127.

Nor do the Allman sentencing prohibitions apply when a defendant receives a prison sentence for a sex-related offense and a consecutive sex offender intensive supervision probation sex offense. People v. Lowe, 2021 CO 51, 488 P.3d 1122.

Nor when a defendant receives a prison sentence for a non-sex offense and a consecutive probation sentence for an offense that does not qualify as a "sex offense" but that nevertheless falls within SOLSA's scope and requires participation in sex offender intensive supervision probation. People v. Coleman, 2021 CO 52, 488 P.3d 1086; People v. Rainey, 2021 CO 53, 488 P.3d 1081.

Applied in People v. Vigil, 104 P.3d 258 (Colo. App. 2004).